Digital Focus: More on Your Photos and the Law

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If you have ever posted a digital photo to a Web site, congratulations: You're a publisher. You're kind of like a magazine, only on a smaller scale, and in the electronic world instead of print.

Last week we started talking about how copyright law affects your photos. This week, let's wrap up our Q&A about practical legal issues in the United States that affect our photos.

Published Photos and Copyright Issues

Q: Can I publish a photo that's very similar to one another photographer has already published?

A: That depends. Last week I said that copyright law does not protect ideas, such as the concept of photographing Niagara Falls with a long exposure.

So on one hand, that means you can photograph--and even publish--an image that is essentially identical to another photo. But on the other, you might be in violation of copyright if you saw the published image and then decided to try to duplicate it. If you had access to the original and there is substantial similarity, then a court might decide that you infringed on the photographer's copyright.

Of course, infringement is difficult to prove. Two people can independently develop substantially identical images and publish them separately. As long as they work in ignorance of each other, both images are fully protected under copyright law. And don't forget that taking inspiration from other artists is a time-honored way of creating new art. Without Robert Heinlein's Starship Troopers, there would be no film called Aliens. Without The Beatles' I am the Walrus, there would be no band called ELO--or Oasis, for that matter. From The Honeymooners, you get The Flintstones. And so it goes with photography.

Q: What if I find someone is using my image without permission?

A: If you plan to challenge the use of your photo in court, the first thing you need to do is register the image with the U.S. Copyright Office if you haven't done so already. You should probably also talk to an attorney to see if you have a case. But in my experience, copyright cases rarely pay enough to recover expenses. To recover damages, you need to demonstrate how you were damaged by the infringement, and the burden of proof is on you.

Q: If I sell my image to a Web site or magazine, do I lose my copyright?

A: Not necessarily. You own the picture, and you own the copyright. When you make a sale, you give some rights to the publisher. Which rights, and how comprehensive they are, is a matter to be decided between you and the publisher and is usually spelled out in a contract.

Taking Pictures of Public Events

Q: Do I need a permit to photograph a public event or in a public place?

A: No. It's your constitutional right to photograph in public.

Q: If the military is participating in a local event, can I photograph its hardware?

A: Yes, you can. The branches of the military can prohibit photography only within the boundaries of their own installations. If they participate in a local event, they're displaying their hardware publicly, with no expectation of privacy--just don't expect to see anything secret, like their alien spaceships or time machines.

One exception: There are certain times when a deployed military force needs to set up what's called a "national security perimeter" on public, or even private, land. This kind of event is rare, but it does happen. If you encounter such a thing and military guards warn you to put away your camera, I'd recommend doing as they say. Trust me on this one.

Q: What kinds of pictures aren't protected by the First Amendment?

A: Most of the kinds of pictures you're likely to want to take are within your constitutional right to do so. However, in some situations you're not protected and can be held liable for damages. These, as you can see, are fairly obvious, common-sense situations and can easily be avoided:

  • Photographing on private property. You may not enter or photograph on private property without the owner's permission.
  • Libel or slander. You can't misrepresent facts through the use of a photograph or accompanying text.
  • Use of the photograph in a commercial application. You need permission to photograph someone for an advertisement.

Photographing People in Public

Q: Can I photograph people in public places without their permission?

A: Absolutely. People get really muddled about this issue, but the reality is that you have a virtually unrestricted right to use a camera in public. One big caveat: It's common courtesy to get verbal permission. Nonetheless, people don't have the right to bar you from photographing them in public, where they would not ordinarily have an expectation of privacy.

Q: Can I publish pictures of people I've photographed without permission?

A: That depends upon the purpose of the picture. If it's artistic or editorial in nature, or can be characterized as to inform or educate, then you do not need your subject's explicit permission.

If the picture or any associated text may be libelous, defamatory, or fall outside of what courts have described as "the normal sensibilities" of the target audience, then you may need permission from the subject for your own protection. You also need permission from the subject if the picture is used for commercial purposes, such as in an advertisement.

Q: Why is the subject's permission required for commercial photos?

A: You need to get permission from the subjects of your photos when you're creating images for commercial purposes because their role implies that they endorse the product. If you photograph a mother and baby in a local park, for instance, and the image ends up on a Web site selling baby food, then it implies that the people use the product--or at the very least endorse it. And that's the difference between commercial photography and publishing candid photos of strangers in a photo gallery, in a magazine article, or on the Internet. In those cases there's no kind of product endorsement implied.

Q: How do I get permission from my subject?

A: You'll do that with what is called a "model release form." Someone you've photographed, or plan to, signs this document, giving you permission to publish their image. You generally only need permission from the subject of your picture if the image will be used for commercial purposes (advertising). There's no official format for a model release. You can make your own, and there are many good examples all over the Web. In fact, here's one you could download, print, and carry around in your camera bag.

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